Once again it is best to allow the voice of the respondent to speak as to what occurred
next-
“Pursuant to this Court Order, (i.e. the order of the 9th November) I proceeded to my home at Macetjeni on the 9th December 2001 (a Sunday). I was in the company of my younger brother, Zeblon Fakudze.
As we were still clearing the yard a police officer who introduced himself as Sergeant Simelane came and enquired why we were within
the premises as I have been evicted from the area last year. I showed him the court order and he read it. He then asked me why I
had not come back earlier since the court order was dated the 13th November 2001. I told him that I had been in hospital all along and had just been discharged. He then told us to stop clearing the
yard until he had informed his superiors. We complied. He then left.
After about thirty (30) minutes he came back and said his superiors were coming to speak to us and asked us to go to the security
camp in the area to meet them. We refused and said we would rather come out of the premises and sit next to the perimeter fence pending
the arrival of his superiors.
After about an hour a large group of police officers came. They were led by the 3rd respondent who did the talking all the time. The 3rd respondent told me in no uncertain terms that he did not want to see me within the premises of my home since I was evicted from the
area last year. I showed him the court order but he refused even to look at it. I then told him that the court order said I should
not be prevented from returning to and residing at my home pending the finalization of the main application (i.e. case no.2823/2000).
He told me that I should take the court order and give it to one who evicted me from the area.
I then asked him to show me any document authorising him to prevent me from returning to my home. He failed. I further asked him
why he was doing this since the police were served with the court order. He told me that whoever received the court order merely
signed because he was receiving it not that he was bound by its contents. He then told me that he was not going to argue with me
any further and that I should leave the place immediately failing which he would use violence. I then told my brother that we better
leave the area. We left.
I then boarded public transport and went back to Makhewu area, past Siteki where I am presently residing with a relative.”
On the 13th December 2001 the respondent therefore brought an application before the High Court in which he sought the following relief:
“Committing the 3rd respondent (presently the 3rd respondent) to prison for seven days for contempt of the court order issued by this Honourable Court on the 9th November 2001.
Directing the 1st respondent to ensure that the applicant is not again prevented from returning and residing at his home at Macetjeni area in the Lubombo
District pending the finalisation of Case No.2823/2000.
Directing the respondents to pay costs jointly and severally the one paying the other to be absolved on the Attorney and own client
scale including counsel’s fees calculated on the same scale.”
This application was opposed. It was heard by Matsebula J and in a judgment dated the 14th of March 2002 he granted the application as prayed. He did however, quite correctly suspend the committal of the 3rd respondent to prison “on condition that the respondents, that is the first and third respondents, obey the court order issued by this Court and do not stop
the applicant from returning to his homestead.” (emphasis added)
It is against this order that the three appellants have appealed to this court.
Whilst in its opposing affidavits the appellants have challenged some of the detailed
allegations concerning the manner in which they treated the respondent, they have not contested the fact that they have prevented
the respondent from returning to his homestead and that they have done so deliberately and with a full appreciation of the nature
and consequences of their conduct.
As the learned trial Judge pointed out in his judgment all they say is to the effect
that “the respondent and his Chief were evicted from the Macetjeni area, (and that) the contents of the court order is of no
moment (to them, the police).” It is clear that the third respondent (Dladla) relied on instructions received from the Commissioner
of Police and acted as he did because he “had no mandate to deviate from it.”
The only other contention upon which the appellants rely are averments concerning
national security.
The first respondent says the following in this regard:
“I wish to state that I have information about this matter the effect of which is that national security is greatly threatened
if I can divulge it to this Honourable Court. We do have a very plausible explanation why we do not allow applicant, and other evictees,
to return to Macetjeni and kaMkhweli areas where they are resident before they were evicted. I would like to state such reasons before
this court but because any attempt to do so will jeopardize national security I feel, strongly, that such information should not
be divulged to the public.
I am fully aware of the court orders that this court has issued time and again ordering that the evictees be returned or be allowed
back to their original places of residence. The reason why I am not enforcing them is also based on the security of the nation which
I am in possession of verified information, that it is threatened should I enforce the same.
I am in no way wilfully refusing to obey the court orders but I submit that in as much as I have an obligation to comply with the
orders of this Honourable Court I have another competing, but paramount, duty to ensure that national security is not threatened
and that any thing which so threatens national security must be brought under our full control and that national security considerations
override all other interests whether they rise out of a court order or not and they are all subject to the dictates of national security.
I do not intend not complying with the court order indefinitely but as soon as the threat is over applicant will be re-instated back
to his original home. It is also unfortunate that my non-compliance with the court order prima facie amounts to contempt of court but I wish to state that I have a valid reason for my conduct and I cannot disclose it in this affidavit
because the same is a public document which any member of the public can have access to.”
In a short affidavit the Commanding Officer of the Umbutfo Swaziland Defence Force says the following:
“I am an adult Swazi male employed by the Government of Swaziland as an Army Commander of the Umbutfo Swaziland Defence Force
and I have my head office situated at Bethany Army Headquarters. My primary duty is to defend the country against any external and
internal military invasion and to assist in the keeping of peace in the country whenever there is a breach of peace. I am perfectly
aware of this matter and I have deployed some soldiers to keep the peace in the Macetjeni and kaMkhweli areas to work jointly with
police officers working for the first respondent herein and thus I am entitled to depose to an affidavit ex officio.
The facts herein stated are within my personal knowledge and are derived from reliable sources within the reach of my office and
`documentation in our possession and are true and correct.
I have read the answering affidavit of the third respondent and the supporting affidavit of the Commissioner of Police and I confirm
them in all respect and in so far as they talk about the existence of a threat to national security. I hereby state that it was the
presence of such a threat that made me to deploy my troops in the Macetjeni area thus there is a security problem which we are still
monitoring, which has also made it difficult for us to allow the applicant back to his original area of residence. I will withdraw
my troops in the area as soon as the security problem has been overcome.”
The learned judge in his judgment says the following concerning the last gasp attempt to raise national security as a barrier to
the enforcement of the court order. The relevant portion of his judgment reads as follows:
“This Court rejects the question raised, i.e. security by the third respondent. This rejection is based on the following grounds:-
(a)
Reference was made to case no.2823/00 which at the time when this application was made the case was pending at the High Court;
(b)
Reference was also made to the decision by the Court of Appeal case no.2823/00. At some stage during the hearing of the case an officer
from the Attorney-General went into the w